Lloyd v. Hough

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria.

The facts in the case, and bills of exceptions, are stated in the opinion of the court, to which the reader is referred.

Semmes, for the plaintiff in error.

Neale, for the defendant.

Semmes, for the plaintiff, raised the following points.

First bill of exceptions.-There was error in the opinion and instructions of the court.

1. Because the instruction was not given upon the whole of the evidence of the witness, Isaac Robbins, but upon only part, which he gave upon cross-examination by the defendant in error.

2. Because the court allowed parol evidence of title to real estate to go to the jury.

3. Because in the opinion and instruction they gave on this portion of the evidence, the court directed the jury, if they believed the testimony therein stated, they 'must' find for the defendant.

Second bill of exception.-The court ought to have instructed the jury, that if they believed the evidence therein stated to be true, the plaintiff, being the fee simple owner of the tenement, could recover on the implied contract as stated in the second count of the declaration, without any proof of an actual entry into the premises on the part of the plaintiff, or acknowledgment on the part of the defendant that he considered the plaintiff his landlord, or without any proof that the defendant had actual notice of the legal and fee simple title to the plaintiff to the premises.

Third bill of exception.-Evidence ought to have been admitted to show the notoriety of Lloyd's claim and title, tending, with other circumstances, to bring the knowledge of it home to the defendant.

Fourth bill-governed by same principles as second.

On the right of the jury to weigh evidence, he cited Greenleaf, p. 292, 445, 446, 568; 1 Call, 161; 2 Mod. 478.

That an action will lie on an implied promise, 16 East, 104; 1 Levins, 179; 2 Campb. 18; 1 Campb. 466. Debt lies for use and occupation, 6 T. R. 62; 4 Day, 228.

Neale, for the defendant, cited several authorities to show that interest could not be recovered upon rent in arrear; and to prove that this action would not lie where there was no privity of contract, cited 1 Esp. 57, 59, 61; 2 Nott and McCord, 156; 3 Serg. and Rewle, 500; 6 Conn. Rep. 1; Chitty on Contracts, (3d Am. ed. by Troubat,) 106; 2 Tuck. Com. book 3, c. 1, p. 19, 20; 2 Campb. 11, 12; 1 Campb. 466; Buller N. P. 139.

As to the court directing the jury they must find for the defendant, 5 Peters, 197; 14 Peters, 327; 1 Cranch, 300; 4 Cranch, 71; 4 Leigh, 114; 1 Wash. 5, 6; 5 Rand. 145, 194.

Mr. Justice DANIEL delivered the opinion of the court.